Wisconsin Enacts First Statewide Gay and Lesbian Civil Rights Law

Wisconsin became the first state to enact a gay, lesbian, and bisexual civil rights law, adding the term “sexual orientation” to the state’s list of prevailing civil rights statutes. The law’s effects exceeded the state’s borders.

Date February 25, 1982

Also known as:Chapter 112 of the Wisconsin Statutes

Locale Wisconsin

Key Figures

• David Clarenbach state representative from Madison
• Lloyd Barbee state representative from Milwaukee
• Lee Dreyfus governor of Wisconsin, 1979-1983

Summary of Event

During the 1970’s, a number of forward-thinking states began consideration of civil rights measures for gays and lesbians. States such as New York, Minnesota, California, Massachusetts, Oregon, Colorado, Hawaii, and Wisconsin introduced gay and lesbian rights bills in their legislatures. None of these bills were approved, however, and state policy changes moved at a slow pace.

The first attempt to reform Wisconsin statutes to provide legal protections for gay and lesbian residents occurred in 1975. Assembly Bill (AB) 269 was introduced by Representative Lloyd Barbee, an African American Milwaukee legislator, and Representative David Clarenbach, a twenty-one-year-old freshman legislator from Madison. The omnibus sex reform bill gathered interest because of its radical approach toward a wide variety of sexual issues at the state level.

Key proposals contained in the legislation were the following: repeal of all laws prohibiting consensual sexual acts, which shall be defined as private matters not punishable by criminal law; legalization of same-gender marriage; repeal of all abortion and obscenity statutes; age of consent to be lowered to age fourteen; legalization of prostitution; and incest among adults no longer illegal.

Clarenbach also introduced an amendment to AB 209, which further protected against discrimination in housing based upon sexual orientation, income, religion, ancestry, disability, or educational status. He further introduced similar amendment provisions to AB 358 for legal protections against discrimination in public accommodations. Clarenbach’s amendments to bill 358 were rejected by a wide majority in the judiciary committee.

During the same session of the legislature, Representative Barbee delayed revision of the Wisconsin criminal code in hopes of establishing gay and lesbian rights through a backdoor policy move. Both Barbee and Clarenbach wanted to include a change in the state criminal code that would make a distinction between public and private and gay and lesbian sex acts, stipulating punishment only for public sex acts between those of the same gender. The move did not succeed.

Clarenbach introduced the gay and lesbian rights measure into every session of the general assembly from 1975 to 1981, but he did not bring it to a vote until he was sure it would pass. He acknowledged the measure required some softening up and the education of those in opposition. In the intervening years he lined up the needed votes for approval. The question at hand concerning gay and lesbian rights, according to Clarenbach, was, How does one create an atmosphere of political security for elected politicians who are in favor but who do not want the political risks associated with it? Clarenbach publicly stated he had high praise for those legislators’ fortitude.

Clarenbach’s approach contained four key parts: present the measure as consistent with the traditions of the progressive state of Wisconsin; defuse religious dissent by acquiring mainline religious endorsements; present the civil rights measure as a bipartisan proposal; and political support would be the responsibility of gay and lesbian activists across the state. After his attempt to repeal Wisconsin’s antisodomy law failed by one vote, Clarenbach decided to push forward the civil rights measure. He believed that time was running out to pass the bill. He thought he would have one session of the assembly only to do so.

Joining Clarenbach in support of the measure was four colleagues from Milwaukee. All four were from “politically safe” districts in the city. Sponsors of the bill (AB 70) focused attention on Wisconsin’s liberal and progressive traditions toward civil rights, and also that the two largest cities in the state, Madison and Milwaukee, already had antidiscrimination laws on the books. The National Gay and Lesbian Task Force provided additional resources.

Gay and lesbian activists and their supporters framed the debate around the issue of whether antigay and antilesbian discrimination should be tolerated in Wisconsin; they did not frame the issue around the morality of homosexual behavior. To avoid religious dissent, gay and lesbian activists gathered endorsements from mainline religious groups—Protestant and Roman Catholic—most notably the Roman Catholic Archdiocese of Milwaukee and the American Baptist Church. The thrust was to lessen inroads by the conservative group, Moral Majority, which was attempting to prevent the bill’s passage. To keep the bill from being viewed as a “Democratic” endeavor, Republican legislators were sought out as sponsors. While the number of Republicans supporting the legislation was small, those supporters were front and center. Other possible sources of discontent were co-opted in the effort.

To achieve passage of such a law, Clarenbach pointed out that one needs not just gay and lesbian activists, their supporters, and alliances on the outside; one also needs a government insider who has the determination, strength, and stamina to do the “dirty” work and get the job done. As a politician in the government one has to be prepared to engage colleagues in rational debate, to educate the less knowledgeable, and to bargain away political favors.

The strategy was successful, despite a close vote. The bill passed the state assembly, the more conservative of the two legislative chambers, in a 49-45 vote. To achieve a compromise in the senate, the Committee on State and Local Affairs and Taxation proposed an amendment be added to the measure that stated affirmative action was not necessary regarding sexual orientation statutes. The measure passed the upper house on February 13, 1982, by a vote of 19-13, following a vote of nonconcurrence with the assembly bill version. The assembly then accepted by vote the senate language.

Before signing the bill into law, Wisconsin Republican governor Lee Dreyfus wanted to be assured by the state legislature that the law would not include gays and lesbians under affirmative action guidelines. An amendment was attached to the bill disclaiming affirmative action. Dreyfus signed the legislation into law on February 25, 1982. The bill became officially known as Chapter 112 of the Wisconsin Statutes. At the signing, Dreyfus stated “noninterference in people’s private lives has always been a hallmark of the Republican philosophy.” The governor also purportedly signed the measure immediately to avoid rising political sentiment to veto it. Ironically, the bill passage happened in an election year and was not an issue in either the gubernatorial or legislative races that year.

After seven years of debate and public education, Wisconsin had passed the first statewide gay and lesbian civil rights law in the United States. The new law as passed simply added the category “sexual orientation” to prevailing state civil rights statutes. It was presented in discussions solely as a civil rights law, not as a progay and pro-lesbian rights law, thus garnering support from a wide variety of state special interest groups.

The bill prohibited discrimination based upon an individual’s sexual orientation in employment, housing, and public accommodations. “Sexual orientation” is defined under Wisconsin state law as “heterosexuality,” “homosexuality,” “bisexuality,” “having a history of such a preference,” or “being identified with such a sexual preference.” The prohibition against discrimination further includes the state civil service, state contractors, and state national guard, and it includes administrative rules promulgated by state agencies. The primary source of enforcement would be the Equal Rights Division of the Department of Industry, Labor, and Human Relations, other state and federal agencies, and the courts.

The passage of the gay and lesbian civil rights law was significant especially because Wisconsin is a mostly rural, conservative, midwestern state with many traditional values. It was the home of U.S. Senator Joseph McCarthy, who conducted “fag hunts” in the early 1950’s. At the same time, Wisconsin embraced and fostered the progressive movement, developing many socially progressive programs in the early part of the twentieth century. Undoubtedly, it was through the political sentiments of progressivism that AB 70 came into existence.

Anthony Earl, a Democrat, assumed the office of Wisconsin governor in 1982. It was his responsibility to implement the newly passed gay and lesbian civil rights law. He developed the Governor’s Council on Lesbian and Gay Issues to assist in enforcing the legislation and in making recommendations on other gay- and lesbian-related issues. He appointed an out gay man, Ron McCrea, as his press secretary. Under Earl’s administration, the Wisconsin legislature also decriminalized gay sex by repealing the state sodomy statute in 1983.

In the first year of the law, only one hundred people had filed complaints with the Equal Rights Division. The majority of the filings concerned employment and public accommodation issues. This low number reflects perhaps the public’s not knowing that the law existed. Lack of knowledge of the law in rural locations of Wisconsin was widespread among heterosexuals, as well as gays and lesbians. A bigger fear of retaliation and openness about their sexual status lurked in the minds of many people who considered filing complaints, diminishing the likelihood of filing.

Employers also became more sophisticated in their techniques to disguise discrimination in employment practices, given that antigay and antilesbian discrimination is harder to prove than other forms of discriminatory practices. Furthermore, the public accommodations section was weakened by leaving prosecution up to local district attorneys. The impact of a gay and lesbian civil rights law is diminished when a state judicial system does not fully implement that law. There was an early need to infuse the whole state bureaucracy with the legislative principles.

To overcome these and other barriers, gay and lesbian activists cooperated with the Equal Rights Division in publishing a brochure called the “Rights of Gay People.” Former Republican governor of Wisconsin Warren Knowles made several public service announcements concerning equal rights legislation, including sexual orientation coverage. Media around the state tried to get the word out about the civil rights guidelines as well.

Significance

State government supporters of gay and lesbian rights stated that the law has had both profound and positive effects in Wisconsin. It has boosted the self-esteem of gay and lesbian residents, and it has given them legal recourse in matters pertaining to employment, housing, and accommodation in the public and private sectors. It has given all sexual minorities across the state legitimacy and credibility. The burden was no longer on gay and lesbian citizens to justify their existence, but instead was on the actions of the person who was discriminating.

The subtle message embedded in the passage of AB 70 was not so much that gay and lesbian citizens have legal remedy to fight discrimination, but rather that the governing body of the state of Wisconsin decided that society ought to protect an undervalued population, in this case, lesbians, gays, and other sexual minorities.

The passage of the Wisconsin gay and lesbian civil rights bill has provided inspiration for organizing, motivating, and coalescing community leaders. It further motivated community activists in Milwaukee and Madison to propose legislation barring discrimination by local governments and businesses against unmarried couples (those registered as domestic partners or those partnered in civil unions), regardless of sexual orientation. This type of legislation, if passed, would fill a void in the state statute regarding gay and lesbian family law. However, in November, 2006, Wisconsin voters were set to vote on a proposal to ban not only same-gender marriage but also civil unions in the state, an obvious setback if passed.

The political clout of gay and lesbian residents of Wisconsin has been strengthened. The impact of the law has exceeded the boundaries of the state, serving in a direct or indirect capacity as a model for other states. Since 1982, more than one dozen states have passed or issued executive orders outlawing discrimination toward gays and lesbians, providing either full or partial coverage under civil rights guidelines.

Bibliography

Anderson, Scott. “Wisconsin Assemblyman David Clarenbach: The Inside Track.” The Advocate, July 22, 1982, 23.

Egerton, Brooks. “AB70 Anniversary: Gay Rights in Theory: Discrimination Still the Practice.” Out!, March, 1983, 1-3.

Freiberg, Peter. “First State Gay Rights Law Three Years Later.” The Advocate, September 3, 1985, 12-13.

McCrea, Ron. “Dairy State Looks at Sex Laws.” The Advocate, May 21, 1975, 8.

Van der Meide, Wayne. Legislating Equality: A Review of Laws Affecting Gay, Lesbian, Bisexual, and Transgendered People in the United States. New York: Policy Institute of the National Gay and Lesbian Task Force, 2000.

“Wisconsin First State to Pass Gay Rights Law.” The Advocate, April 1, 1982, 9.